FAZAL-E-MIRAN CHAUHAN, ELECTION TRIBUNAL--This judgment will dispose of Election Appeal No.70-A of 2007 titled as "Sikandar Hayat Khan Bosan v. Syed Yousaf Raza Gillani etc." and Election Appeal No.46-A of 2007 titled as "Fazal Ahmad Sheikh v. Syed Yousaf Raza Gilani", as the same question is involved in both the appeals.
2. For the participation in the forthcoming elections, scheduled to be held on 8-1-2008 the appellant and respondent No.1 along with others filed their nomination papers for N.A-151, Multan before the learned Returning Officer-respondent No.2. During the course of scrutiny of the nomination papers of respondent No.1, the appellant raised the following objections:---
(a) Respondent No.1 was convicted on 18-9-2004 by the Judge Accountability Court No.1, Rawalpindi and sentenced to undergo 10 years' R.I. With a fine of Rs,10,00,00,000 (rupees ten crore) or to suffer 5 years R.I. He was further disqualified for a period of 10 years from the date, he is released after serving his sentence, for seeking or from being elected, chosen, appointed or nominated as a member or representative of any public body or any statutory or local authority or in service of Pakistan or of any Province.
(b) He is a defaulter and
(c) He has concealed the facts.
3. The learned Returning Officer, vide his order dated 27-11-2007 rejected the objections of the appellant and accepted the nomination papers of respondent No.1. Para. No:5 of the order is re- produced as under:--- "I have great honour and respect for the case law relied upon by the objector Mr. Sikandar Hayat Khan Bosan but it does not apply to the facts of this case. On the other hand, the case law referred to by Syed Yousaf Raza Gillani is applicable to the facts of the case. The sentence and conviction awarded to Syed Yousaf Raza Gillani by the Accountability Court No.1 Rawalpindi on 18-9-2004 has been suspended. It is an admitted fact that Syed Yousuf Raza Gillani has preferred appeals against the conviction so in view of the law laid down in 2006 YLR 48, Lahore, he can contest the election.
The candidate has mentioned the pendency of the appeals in the Honourable Lahore High Court, Rawalpindi Bench so it cannot be said that he has concealed the facts or has given false information".
4. It is argued that, respondent No.1 was convicted by the Accountability Court No.III, Rawalpindi on 8-6-2002 and was sentenced to 5 years' R.I. With a fine of Rs,10,00,00,000 and suspension of sentence by a Division Bench of this Court does not mean suspension of conviction. The conviction remains in field. Further argued that, in the second case, even sentence has not been suspended, whereas, the appeal against conviction and sentence is pending in the High Court. In Appeal No.22-E of 2002, sentence has not been suspended. Conviction and sentence has been suspended by a Division Bench at Rawalpindi Bench, vide order, dated 5-10-2006 and respondent No.1 was released on bail. The conviction still holds the field, thus, respondent No.1 is not eligible to contest/take part in the election, keeping in view the disqualification, as per Article 63 of the Constitution of Islamic Republic of Pakistan, 1973 and section 99 of the Representation of the People Act, 1976. It is also argued that, conviction is complete as soon as the person charged has been found guilty by a Court of competent jurisdiction. The appellate Court may suspend the sentence under section 426, Cr.P.C. And not the conviction, which will remain operative till it is set aside by a higher forum. Pendency of appeal does not ipso facto means that conviction is wiped out.
5. Conversely, learned counsel for respondent No.1 has opposed this appeal and states that, the learned Returning Officer has rightly rejected the objections, raised by the appellant and accepted the nomination papeRs, Against the conviction and sentence, passed by the Accountability Court No.1 in Reference No.39 of 2001, dated 18-9-2004, Criminal Appeal No.21 of 2004 was filed, which is pending adjudication before the Rawalpindi Bench of this Court, being sub judice before the competent appellate forum, the matter has yet to attain finality in terms of section 430, Cr.P.C.
Further states that, W.P.No.122 of 2006 was filed against the judgment of Accountability Court, seeking suspension and conviction awarded. The same was finally disposed of on 5-10-2006 whereby the conviction and sentence, awarded by the Judge Accountability Court was suspended by a Division Bench of this Court. Further submits that, since the conviction and sentence has been suspended by this Court, respondent No.1 cannot be considered a convict till the decision of criminal appeals, pending in the High Court. The orders of conviction and sentence are sub judice and pendency of appeal is continuation of the trial till conviction and sentence is confirmed by the High Court, respondent No.1 cannot be treated as a convict person. Further argued that, respondent No.1 is not a defaulter and does not fall within the ambit of section 99, 1-A(s) of the Representation of the People Act, 1976; respondent No.1 never obtained any loan in his own name or in the name of his spouse or any of his dependent. There is no material or documentary evidence to show that respondent No.1 directly or indirectly obtained any loan in his name or in the name of his spouse of any of his dependent. Also states that, wife of respondent No.1 is a Director of one of the Company. A Director having fiduciary relationship with the company cannot be claimed as its owner or co-owner.. A company is an artificial juridical person in the eyes of law, which runs its day-to-day affairs through its board of directors, even by no stretch of imagination, it can be said that, the assets or liabilities of a company are in fact owned by its directoRs, The loan obtained by Multan Edible Oil Extraction Company Limited were not in the knowledge of respondent No.1 or his wife. An agreement executed between Multan Edible Oil Extraction Company Limited and the National Development Finance Corporation Limited dated 26-11-1997 for a credit of Rs,37,292,000.
Similarly, an agreement executed between Multan Edible Oil Extraction Company Limited and Agricultural Development Bank of Pakistan dated 3-11-1990 for a credit of Rs,78.352 millions. Further states that, the matter of recovery against the Company and its directors is pending adjudication at Sindh High Court, Karachi. The said company is proceeding in a legal way to settle its accounts with the concerned Financial Institutions. Respondent No. l's wife has not signed the above loan agreements and has not been declared as defaulter anywhere. Respondent No.1 is not involved in any case of wealth turpitude or for giving false evidence. Respondent No.1, is not defaulter of income tax or wealth tax, as alleged by the appellant. The Income Tax Appellate Tribunal, Lahore Bench Lahore, vide its order dated 6-12-2007 has stayed the recovery proceedings against the assessee for a period of 60 days and fixed the appeal of respondent No.1 for 18-12-2007. The amount of Rs,3,13,008 has also been paid and nothing is outstanding on account of wealth tax in the name of respondent No.1.
6. Learned counsel for the appellant, while giving reply to the arguments of learned counsel for respondent No.1, on the question of default and financial liability, states that, in view of the documents placed on the record by respondent No.1, raising a question of controversy, which required evidence to show, whether any liability exists against respondent No.1, whether the same has been discharged or paid off and whether he is a defaulter of 2 Million Rupees or more as required in sub-clause (s) of subsection (a)(1) of the Representation of the. People Act, 1976; he would not press his objection to that effect and reserve his rights to raise the same at appropriate time. Thus, in view of the statement of learned counsel for the appellant, we would not like to go into the issue, discussed, and give any finding on the question of any default or financial liability existing against respondent No.l.
7. We have considered the arguments advanced by learned counsel for the parties and perused the relevant record on the question of conviction. Prima facie, the contentions of learned counsel for respondent No.1 are well-founded. There is no denial of the fact that, respondent No.1 was convicted and sentenced by Accountability Court-I, Rawalpindi. The said conviction and sentence awarded by the Accountability Court, Rawalpindi has been challenged in two criminal appeals; which are admitted for regular hearing and are still awaiting decision and verdict of this Court on the same, as to whether the conviction and sentence awarded to respondent No.1 is in accordance with law or otherwise. Since the matter of guilt or innocence of respondent No.1 is sub judice and in terms of section. 430, Cr.P.C. And the decision of this Court will be the final determination of his guilt or otherwise, hence, for the time being, he cannot be considered a convict within the meaning of Article 63(h) of the Constitution of Islamic Republic of Pakistan, 1973 and Clause (r) of subsections (1)(a) of section 99 of the Representation of the People Act, 1976. Pendency of appeal is always considered to be continuation of the trial, meaning thereby that conviction or sentence awarded to a person, will be considered to be the final, subject to the decision of the Appellate Court in terms of section 430, Cr.P.C. Even otherwise, conviction and sentence awarded to respondent No.1 by Accountability Court No.1, Rawalpindi/Islamabad, vide order dated 18-9-2004 in Reference No.39 of 2001, has been suspended by a Division Bench of this Court on 5-10-2006 in Writ Petition No.122 of 2006, thus, he cannot be considered to he a convict for the purpose of section 99(1A) of the Representation of the People Act, 1976 and Article 63(h) of the Constitution. The order of suspending the conviction and sentence was not challenged by the prosecution, therefore, the same still holds the field.
8. The other point raised regarding the embargo imposed upon respondent No.1 by the Accountability Court-I, while awarding conviction and sentence of 5 years, that he would not be eligible to contest the election for 10 years, if he has served out the sentence of 5 years, awarded to him by the Accountability Court-I vide order dated 18-9-2004. It is to be noted that, in the same case, respondent No.1 has been bailed out by a Division Bench of this Court, after suspending his conviction and sentence and on the day he has been bailed out, it was found that, he has served out sentence of 4 years and 30 days, meaning thereby, that sentence of 11 months is still to be undergone by respondent No.1, if his appeal pending in the High Court is dismissed. Since he has not served out the complete sentence, awarded to him, by the Accountability Court-I, the condition/embargo imposed cannot be pressed into to disqualify respondent No.1 from contesting the election.
9. For what has been discussed above, we find that, the order of learned Returning Officer does not suffer from any illegality or irregularity nor the same is without jurisdiction, hence, this appeal has no force and is dismissed, with no order as to costs.